Kerala High Court
Sathi Kumari vs The Secretary on 15 February, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 29187 OF 2023
PETITIONER:
SATHI KUMARI
AGED 57 YEARS
D/O SETHU, T C 79/909, NEW TC 91/1087, VAYALIL VEEDU, GURU
NAGAR, NETTAVILAKOM, KARIKKAKOM POST,
THIRUVANANTHAPURAM, PIN - 695 021.
BY ADVS.
AJIT G ANJARLEKAR
G.P.SHINOD
GOVIND PADMANAABHAN
ATUL MATHEWS
GAYATHRI S.B.
RESPONDENTS:
1 THE SECRETARY
CORPORATION OF THIRUVANANTHAPURAM, PALAYAM, VIKAS
BAHVAN POST, THIRUVANANTHAPURAM, PIN - 695 033.
2 ANIL KUMAR K
MAKAYIRAM, TC 79/919 (2), MOOLAYIL PARAMBU, KARIKKAKOM
POST, THIRUVANANTHAPURAM, PIN - 695 021.
BY ADVS
UNNI. K K(EZHUMATTOOR)
SRI.SUMAN CHAKRAVARTHY, STANDING COUNSEL.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) 29187/2023 :2:
CR
JUDGMENT
Can a 'vacation notice' issued after the
confirmation of a provisional order be challenged under
Section 509(6) of the Kerala Municipality Act, 1994?
2. On the basis of a complaint lodged by the 2 nd
respondent alleging that the petitioner had constructed
a toilet in her property, abutting the boundary wall of
his property, the 1st respondent, the Secretary,
Corporation of Thiruvananthapuram, issued Ext. P2
provisional order under Section 406(1) of the Kerala
Municipality Act, 1994 (hereinafter referred to as the
'Act'), requiring the petitioner to demolish the
unauthorized construction described therein and carried
out in violation of Rules 26(4) and 67 of the Kerala
Municipality Building Rules, 2019 (hereinafter referred
to as the 'Building Rules').
3. The petitioner submitted Ext. P3 explanation in
W.P.(C) 29187/2023 :3:
response to Ext. P2, wherein it was pointed out, among
other things, that the construction was carried out after
obtaining consent from the predecessor in interest of
the 2nd respondent.
4. The 1st respondent issued Ext. P4 order under
Section 406(3) of the Act confirming Ext. P2 provisional
order.
5. About nine months after the issuance of Ext. P4
confirmation order, the 1st respondent issued Ext. P5,
titled as 'vacation notice', stating that since no action
was taken by the petitioner following the confirmation
order, the unauthorized construction would be
demolished departmentally, with expenses to be
recovered from the petitioner. The petitioner was called
upon to remove the unauthorized construction within
five days from the date of receipt of the notice.
6. The petitioner challenged Ext. P5 vacation notice
before the Tribunal for Local Self Government
W.P.(C) 29187/2023 :4:
Institutions (for short, 'Tribunal') by filing Ext.P6 appeal
under Section 509(6) of the Act. The Tribunal rejected
the appeal vide Ext. P7 order, observing that, since the
petitioner has not challenged Ext.P4 confirmation order
issued under Section 406(3) of the Act, the appeal filed
against vacation notice is not maintainable. Ext. P7
order is impugned in this writ petition.
7. It is contended by the petitioner that there is no
provision under the Act for issuance of a 'vacation
notice' and therefore, Ext. P5 can only be treated as a
2nd confirmation notice and the Tribunal ought to have
entertained the appeal against Ext. P5 which being one
issued under Section 406 (3) of the Act.
8. A statement has been filed by the 1st
respondent and a counter affidavit has been filed by
the 2nd respondent. In the statement filed by the 1st
respondent, it is stated that Ext. P5 vacation notice is
only consequential action of Ext. P4 statutory order.
W.P.(C) 29187/2023 :5:
9. Heard Sri. Ajit G Anjarlekar, the learned
counsel for the petitioner, Sri. Suman Chakravarthy,
the learned Standing Counsel for the 1st respondent
and Sri. K.K. Unni, the learned counsel for the 2nd
respondent.
10. Section 509(6) of the Act provides for appeal
against any order passed by the Secretary under
Section 406 to the Tribunal, within thirty days from the
date of passing of such order. It is not in dispute that
the petitioner has not challenged Ext. P4 order issued
under Section 406(3) of the Act confirming Ext. P2
provisional order requiring her to demolish the
unauthorized construction. Thus, the cause of action
against Ext. P4 order has become time barred.
11. Section 406(3) of the Act and Rule 90(3) of the
Building Rules provide that, on confirmation of the
provisional order, such order shall be binding on the
owner or the person for whom the work is done and on
W.P.(C) 29187/2023 :6:
the failure to comply with the order, the Secretary may
himself cause the building or part thereof, demolished
and the expenses therefore shall be recoverable from
the owner or such person. Rule 108(3) of the Building
Rules provides that any person aggrieved by any of
the action in the discharge of the administrative
functions by the officer of the Local Self Government
Institutions may submit their grievance to the
Ombudsman for Local Self Government Institutions.
There is no provision under the Act or under the
Building Rules for issuance of a notice to vacate, after
the issuance of confirmation order under Section
406(3). The Act and the Building Rules provide that, on
the failure to comply with the confirmation order, the
Secretary may himself cause the construction,
demolished. Since the Act or the Building Rules does
not contemplate issuance of any further notice after
the issuance of confirmation order, Ext.P5 cannot be
W.P.(C) 29187/2023 :7:
treated as a fresh confirmation order under Section
406(3). Ext.P5 can only be treated as an information
regarding the proposed departmental action for
implementing Ext.P4 confirmation order. Ext. P5 will
not confer any cause of action on the petitioner to
challenge the order of demolition which has already
become time barred. The Tribunal has rejected the
appeal filed against Ext.P5 notice to vacate, as the
petitioner has not challenged Ext. P4 confirmation
order. Ext. P5 notice to vacate is not issued under
Section 406(3) of the Act and hence not appealable
under Section 509(6).
I do not find any reason to interfere with Ext. P7
order of the Tribunal and accordingly, the writ petition
is dismissed.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SRJ
W.P.(C) 29187/2023 :8:
APPENDIX OF WP(C) 29187/2023
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE WRITTEN CONSENT
DATED 09/05/2003 GIVEN BY JAYAN G.
Exhibit P2 A TRUE COPY OF THE PROVISIONAL
ORDER DATED 11/04/2022 ISSUED BY
THE 1ST RESPONDENT TO THE
PETITIONER.
Exhibit P3 A TRUE COPY OF THE REPLY DATED
09/05/2022 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST
RESPONDENT.
Exhibit P4 A TRUE COPY OF THE CONFIRMATION
ORDER DATED 29/10/2022 ISSUED BY
THE 1ST RESPONDENT.
Exhibit P5 A TRUE COPY OF THE VACATION NOTICE
DATED 01/08/2023 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER.
Exhibit P6 A TRUE COPY OF APPEAL NO: 446/2023
FILED BY THE PETITIONER BEFORE THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM.
Exhibit P7 A TRUE COPY OF THE ORDER DATED
21/08/2023 OF THE TRIBUNAL FOR
LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM IN APPEAL NO:
446/2023.
RESPONDENTS'EXHIBITS
Exhibit R2(a) TRUE COPY OF THE POWER OF ATTORNEY
DATED 13.10.2023 EXECUTED BY THE
2ND RESPONDENT.
W.P.(C) 29187/2023 :9:
Exhibit R2(b) TRUE COPY OF THE LETTER DATED
27.12.2019 OF THE 1ST RESPONDENT.
Exhibit R2(c) TRUE COPY OF THE PHOTOGRAPH SHOWING
THE DEMOLISHED TOILET IN 2019.
Exhibit R2(d) TRUE COPY OF THE PHOTOGRAPH SHOWING
THE NEW TOILET CONSTRUCTED BY THE
PETITIONER.
